Playing Inside the Lines of Labor Law: Professional Sports and the Non-Statutory Labor Exemption

By Brian Wallen, a 2012 graduate of Temple University James Beasley School of Law. Wallen is currently studying for the Pennsylvania and New Jersey bar exams. His primary legal interests are labor and employment, and criminal law. He is a devoted Philadelphia sports fan, and does not want to see a season canceled, because he knows next year one of his teams will win a championship.

This year has the potential to be the tipping point regarding the intersection of labor law, anti-trust policy, and sports. In 2011-12 alone, the following leagues have or will engage in some sort of collective bargaining related to organized labor; the NFL, NBA, MLB, NHL, and the AFL. One of the key features of this year’s collective bargaining has been the looming presence of “decertification.”

One week ago, the NHL shot an opening salvo in what may become another tense legal battle of the 2011-2012 sports season. As the playoffs have recently shown, anything is possible in the modern NHL, including a No. 8 seed reaching a Stanley Cup final. Some people suggest this parity was ushered in by the new labor agreement following the lost 2004-05. Given the history of both this league, and this year in sports collective bargaining, one can only approach this upcoming period with weariness.

This seems to be a common thread following the condensed NBA season, and the NFL lockout prior to last season. As a result, a solution is needed so that every six years, a labor action does not become the expected norm.

Mr. Wallen analyzes several concepts which embody the ongoing analysis of sports law, antitrust, and labor law in this context in the research paper below. The first concept will be the unionization of professional sports, as well as the challenges which have brought it into the purview of the courts. It has been a long road with many twists and turns, many of which are evaluated in this paper. Of primary importance is how courts have mistakenly opened doors which were never meant to be unlocked.

He then analyzes anti-trust policy and the relatively recent application of antitrust to professional sports. Specifically, the paper analyzes the non-statutory labor exemption, and its application in labor actions. This will require an understanding of the proper venue to use this tool, the arguments for and against it, as well as the after-effects of using the idea. Embodied within this antitrust examination is the use of union “decertification”; the labor definition and the non-statutory labor exemption definition used for antitrust reasons.

Finally, he will try and find an alternative, albeit non-traditional solution to decertification in the professional sports arena. An alternative solution is needed because the use of decertification has bastardized the functions of Federal labor policy, creating a vacuum where a policy solution is needed. One promising arena which may provide a parallel structure is the use of Global Union Federations (GUFs). These are traditionally transnational in nature, and may provide a guide to the world of professional sports where each union relies on other league’s unions before taking offensive actions.

There have been two labor actions so far this season and one more is threatening. Perhaps, this is a sign of a tipping point considering that Major League Baseball was able to negotiate without a strike. However, given the relative youth of other leagues, as well as the growing complexity in the team-player relationship, it may be time to find an alternative solution.